What is a Scottish secure tenancy

A Scottish secure tenancy can only be granted where a house is let as a separate dwelling. [1] In this context, house also includes a flat or any part of a building occupied, or which is intended for occupation, as a separate dwelling. [2]

The Housing (Scotland) Act 2001 does not give a specific definition of separate dwelling. To constitute a separate dwelling it is necessary that the accommodation being let can be used for the major activities of residential life. This includes, for example, cooking, eating and sleeping. If any of these activities are carried out in a part of the property which the tenant has the right to share with others but which does not form part of the subjects of the lease, it is unlikely that the courts will consider the property as a separate dwelling. [3]

However, in Uratemp Ventures Ltd v Collins the House of Lords held that even the let of accommodation which consisted of a room only, with no kitchen facilities, was capable of being seen as the let of a separate dwelling. [4] In referring to the decision in Uratemp, the Scottish Government's guidance on Scottish secure tenancies states that: 'where the parties agree that the purpose of the letting is as a separate dwelling, there should be no bar on the landlords granting either a short Scottish secure tenancy or a Scottish secure tenancy'. [5]

The legislation limits the type of landlord able to grant a Scottish secure tenancy. [6] A tenancy can be a Scottish secure tenancy only if the landlord is;

• a local authority;

• a registered social landlord (including housing co-operatives);

• or a water or sewerage authority.

The reference to 'local authority' also includes a landlord that is a joint board or committee of two or more local authorities and any trust controlled by a local authority. [7]

Where a registered social landlord is one based in England and is not therefore registered with Communities Scotland, it will not be possible for the landlord to offer a Scottish secure tenancy. This is because the legislation defines a registered social landlord as being one in the register maintained by Communities Scotland on behalf of Scottish Ministers. [8] In this situation, the landlord would be required to register a Scottish subsidiary with Communities Scotland in order to be able to offer a Scottish secure tenancy. If this does not happen, any tenants would have either short assured or assured tenancies.

Corporate bodies, such as companies or organisations, cannot be Scottish secure tenants. The tenant must be an individual. This does not prevent the creation of joint tenancies providing that each tenant is an individual. The legislation specifically permits the establishment of joint tenancies. [9]

The requirement that the property be the tenant's only or principal home does not mean that s/he must reside there all of the time. It is possible that periods of time spent away from the home do not prevent the property being someone's only or principal home. A tenant will still be regarded as occupying their home even if s/he is temporarily absent and there are physical signs of their presence in the property and the tenant has an intention to return to the property. For example, in Beggs v Kilmarnock and Louden District Council a tenant was still regarded as occupying his home when he was imprisoned but continued to pay rent and paid insurance for his furniture, which remained in the property. [10]

In Roxburgh District Council v Collins, [11] the Sheriff Principal held that the correct question to ask when determining whether a property could be described as someone's only or principal home was, 'did the person concerned have such a real, tangible and substantial connection with the house in question that it, rather than any other place of residence, can properly be described as having been his only or principal home during the relevant period?'. Frost v Feltham also offers some authority here, where it was held that the parties' views were 'something that could be thrown into the balance' in deciding what was someone's 'only or main residence'. [12]

In Crawley BC v Sawyer, an English case under comparable legislation, a tenant who lived for over a year at his girlfriend's house was still held to be occupying his council property as his principal home. [13]

Fully mutual housing co-operatives will offer tenants a Scottish secure tenancy but the tenant must become a member of the co-operative before s/he accepts the tenancy. [14]

The legislation specifies the types of landlord and the date from which a Scottish secure tenancy must be offered. From 30 September 2002, a tenancy offered by a local authority, registered social landlord or water/sewerage authority must be a Scottish secure tenancy, unless a short Scottish secure tenancy can be offered. In addition, all tenancies with a local authority or registered social landlord that were in existence prior to 30 September 2002 will convert to a Scottish secure tenancy on this date. [15]